
AP3 

/S52 






SENATE BILL IN RELATION TO PATENTEES. 



Objections to, and reasons why Senate hill 51, entitled '^^arther remedies to 
patentees, ^^ should not become a law : by George W. Beardslee, of Albany^ 
N. Y., as addressed to Hon. R. M. T. Hu7iter, U. S, Senate, 



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of WASV^V 



Albany, N. Y., June 17, 1S52. 

Sir : Although personally a stranger to you, 
yet 1 am induced to address you in consequence 
of the prominent part you have taken in the 
discussion of the bill in the Senate purporting] 
to be for the remedy of patentees, which is yet 
pending in that body, and in consequence of 
your expressed desire for information, and my 
individual interest in the matter. Under a gen- 
eral title, and apparently for a general purpose, 
the bill is really for the protection and security 
of certain speculators vv^ho are assignees of 
Blanchard's patent for turning irregular forms, 
and of Woodworth's planing machine. The 
former patent has already been renewed by the 
Patent Office and by Congress for a term of for- 
ty-two years— the latter for twenty-eight years. 

Senator Seward, who for a number of years 
has been counsel lor the owners of the patents 
which this bill is designed to extend further 
remedies to, cannot be a stranger to the fact 
that, aside from his immediate clients, he could 
not obtain from his constituents hardly a single 
voice to sanction his course on the floor of the 
Senate in so warmly supporting the obnoxious 
features avowed as well as concealed in the bill in 
question. The practical operation of it, and all 
the disastrous consequences in litigation and 
loss of property that his constituents would be 
doomed to suffer from its operation, if sanction- 
ed by Congress, he well understands; for hej 
has been too long engaged in the prosecution of i 
suits in which questions were introduced tbat| 
would arise under this bill, not to know itsj 
operation. It is to be deeply regretted that any 
person occupying the position that Senator Se- j 
ward now does — representing a constituency! 
whose business interests are to be more injuri- i 
ously affected by this bill than those of anyi 
other State in this Union — should so far forget | 
such vast and important interests as to lend his 1 
willing aid to these obnoxious measures. Hej 
has received, as he has avowed on the floor of j 
the Senate, retaining fees as counsel from these; 
very patentees and patent mongers, who have, \ 
more than any other men, by the substantial j 
aid of such counsel, hunted and crushed poorj 
bat honest mechanics and inventors that dared j 
to plane a board or make a last in machines! 
that in no way resembled those falsely called | 
Blanchard's and VVoodworth's. After having], 
driven these men, by lengthy and expensive' 



litigation and exorbitant exactions, to foreign 
territories, near to or adjoining the States, they 
now pursue them in the land to which they 
have been compelled to flee, with an unrelent- 
ing hand, and would filch from them the fruits 
of their toil and industry there, as they have 
done in every State of this Union. 

Some of these very men, selected to be ruined 
under the operation of this obnoxious and un- 
just bill, were once the strong personal friends 
of Senator Seward ; but have been driven from 
their homes, their property, their just rights, 
and their country, by lengthy and expensive 
litigation, in which he acted both as counsel 
and witness against them. 

I have stated the above facts for the purpose 
of inducing some caution in an implicit reliance 
on the statements of men thus interested. In 
the defbate to which 1 refer Mr. Seward is re- 
ported to have alluded to the Blanchard patent, 
and to urge the passage of the bill for the pur- 
pose of protecting it, and to have said, in an- 
swer to your objection, that Blanchard could 
not obtain a patent in England; but he forbore 
to state the true reason of his failure to obtain 
or sustain a valid patent there, if he ever made 
the attempt. The fact is, that machines in all 
respects similar to Blanchard's were well knowa 
and in use in England for turning ship's blocks 
more than sixty years ago ; they Were spoken, 
of by Bentham in 1793, and were used in France 
long prior to the patent; and therefore a patent, 
if obtained in England, would not be valid. 

The object of the bill is to secure the specu- 
lating assignees, who have already reaped large 
fortunes at the expense of the mechanics of tne 
country, in their unjust extortions upon those 
who have purchased rights from the patentees. 
These purchasers supposed, and so did the ven- 
dors at the time, that they would enjoy the right 
of using the machines so long as the patentee or 
his representatives had an exclusive right by 
extension of the patent ; and so the law is when 
the extension is by the Patent 0£5ce. But when 
granted by Congress the courts have held that 
an entire^ new property and right was created, 
and that a former purchaser derived no more 
benefit from such an extension than any 
stranger— a result certainly not intended by 
Congress, and the effect of misconception or in- 
advertence. 

But the speculating assignees availed them- 



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selves of the decision of the courts to exact 
enormous sums from those who already had 
machines in operation, and whose situation 
placed them in the power of the assignees. One 
of these cases occurred under Woodworth's 
patent— that of a Mr. Cook, who had purchased 
of Woodworth the right for Washington coun- 
ty, in this State — a district not far from Canada- 
forever, and had machines in operation under 
the grant in that county. So heavy were the 
exactions demanded of him, under the congres- 
sional grant, by Messrs. Wilson and Gibson, 
the assignees of Woodworth, that he could not 
submit to them, and he removed his machines 
into the province of Canada. The facts in this 
case will be found by reference to Cook's peti- 
tion and affidavit, now before the Patent Com- 
mittee of the House, and in his communications 
to the chairman of that committee; and hi^ 
statement will be verified by the Hon. John H. 
Boyd, a representative from this State. It is 
submitted whether justice requires Congre8S to 
arm these assignees with new powers to op- 
press Mr. Cook and others similarly f^ituatecj. 
and extort large sums in violation of the goo 
faith and understanding when the purchaser 
were made. 

Another object of these speculating assignepf- 
is to shut out all competition, so far at least as 
the supply of lumber iro.m Canada is concerned, 
by patentees of other machines, however dis 
similar in principle or form. Instead of prose 
outing here in the United States the patentee. 
01 any one openly working any machines whicf 
these persons represent as infringements, and 
testing the question fairly and openly with m* !■ 
equal to the conflict, they prefer to fall upon 
the importer of the work of these machines in 
Canada, and upon the merchant or factor who 
sells such work, or upon the citizen who ha|) 
pens to use the article thus imported These 
persons are wholly ignorant ot the rights oi 
the contending patentees, have no intere-t to 
stimulate them to engas^e in most expensive and 
tedious liiigaiion to defend the rights of oihers. 
and have not the pecuniary means to susiaii 
such controversies. The speculating assignee^ 
may justly anticipate easy victories in such 
cases, if armed by the passage of the bill m 
question. I am myself in a position to be S{- 
riou-^ly affected in that way. I am the pa'ente. 
of a planing machine totally dissimilar in prin- 
ciple and in mode of operation from Wood 
worth's. The assignees of the latter endeavored 
to obtain an injunction against me from th* 
Hon Judge Nelson of the Supreme Court o' 
the United States, and signally failed. Thej 
have a suit pending against me which the\ 
may never bring to trial, or if they do. f am 
quite confident of a judgment aiiainst them 
However that may be, they much prefer prose- 
cuting the mechanics and farmers who may im 
port, purchase, or use lumber drc-^sed in CanaiH 
by one of my machines, than coniemiinsi 
against me. Of course it would be impossibl- 
for me to attend to the defence of a thousann 
suits, even if notified of their existence. Th. 
ineviuihle consequence of the passage of the 
bill in question would be to give those genile- 
men the entire monopoly of planing all the 
lumber coming from Canada. All sawed lumber, 



not dressed or planed, would be equally subject 
to the operation of the bill. Now, it is almost 
impossible for a log to be sawed into boards or 
plank in Canada by any known machinery used 
in saw mills, without using something which 
has been patented in the United States : guides 
to gang-saws; modes of feeding or propelling 
the log against the saw ; dogs for logs ; water- 
wheals for propelling the machinery — all these 
and various other contrivances and appliances 
in the process of sawing lumber, which are in 
universal use in Canada and in the United 
States, are covered by American patents. There 
is not a steam-engine in Canada or here but 
what contains some article, or some application 
of power, or some modification of a principle 
covered by American patents. Two-thirds of 
all the lumber in Canada is sawed in large es- 
tablishments where circular saws are used — an 
invention covered by an American patent, and 
sold to the Canadians by the patentee. 

Now, whether the American patents in all 
these cases are valid is questionable. Indeed, 
many of them are perhaps utterly void and worth- 
less. But, in the hands of the patentee and the 
inachine-sharks who procure assignments, they 
will be as effectual under the proposed bill as if 
they were good and valid: First, because the 
victims who will be selected for prosecution are 
ntterly unable, if willing, to contest and expose 
the unsoundness of the pretended patent. Sec- 
ond, the bill does not allow the importer or con- 
sumer to contest the American patent. If it be 
" a subsisting patent, owned by a citizen of the 
United States" — that is, it it be duly issuea, and 
has not expired — there can be no further inquiry; 
the importation, &c , is to be "deemed an in- 
fringement" The bill offers a premium and re- 
ward to the sharks who pray upon patentees 
and the public to purchase worthless patent 
rights for the sole purpose of depredating on the 
community. A still more serious con.-^equence 
will result from the enactment of the bill. The 
provinces of Canada furnish the ^reat reservoir 
nnd supply of lumber for the northern States. 
I have already proved that this sawed lumber 
A'ill be liable to be seized, and the importer, 
purchaser, and consumer liable to prosecution 
and heavy expenses and penalties, at the instance 
of numerous patentees and their assigns, al- 
leging an infringement of their patents by some 
of the various processes in sawing. The letting 
loose of such an army of uestroyers upon the 
importers, purchasers, and consumers of the 
lumber thus sawed will most effectually close 
I he trade in lumber. 

And is it to be supposed that the people and 
government of Canada will quietly submit to 
measures which cut off two-thirds of their trade? 
Ketaliation in some of its worst forms will in- 
evitably follow,at>d, as you very justly remark- 
»-d in the debate alluded to, the honest and fair 
patentees will be the first and jireatesl sufferers 
ny having the products of thtir inventions ex- 
cluded Such consequences are lightly rcsjartled 
by the greedy speculator who is bent upon ex- 
tortion ; but to an American senator they are 
of the gravest importance. ¥• u will perceive, 
hy advening to the bill, that even the consent of 
me patentee to the importation of products madi 
wholly or lu part by machines deemed infringe- 



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ments of his own will not protect the importer 
or party using the products. Any assignee of 
the patentee may, notwithstanding such con- 
sent, prosecute and seize the products. The 
remark made by you in debate, that if the prin- 
ciple of this bill be correct, and patentees are 
entitled to this kind of protection against im- 
portations from adjacent provinces and coun- 
tries near the United States, meaning probably 
the West Indian Islands, they are equally en- 
titled to protection against importations from 
foreign countries generally. It is idle to say 
that this bill contemplates only importations of 
a bulky article— lumber — which cannot well be 
brought a long distance; the bill itself makes 
no such discrimination, but applies to all pro- 
ducts of all kinds of patented inventions. Nor 
can any good reason be given why all patents 
and patentees should not be protected as well as 
some. Why should not the inventors of ma- 
chinery to make iron spikes be protected against 
their importation when manufactured by a pirat- 
ical machine in England ? The facility and 
rapidity of intercourse, and the cheapness of 
freight, already render these importations seri- 
ous diminutions of the sales of the domestic 
article. Pass this bill, and the patentees and 
their assigns of machinery for the manufacturing 
of iron in all its forms, for drawing and rolling 
bar and railroad iron, sheet iron, and steel, the 
patentees of wool condensers and carding ma- 
chines and loom, of machines for breaking 
hemp and flax, of machines for making cutlery, 
and all other hardware shelf goods, Will have 
a just right to insist on an equal measure of 
protection, and it cannot be refused without a 
violation of the principles of the constitution. 
Now, when it is recollected that, in addition to 
the patents just enumerated, there is hardly a 
branch of human industry that is not covered 
by some American patent, real or pretended, it 
will be perceived at once that such a law, gen- 
eral in its scope and applicable to all countries, 
would annihilate the commerce of the United 
States, or at least abolish the duties and lay an 
embargo on the importations of all manufactured 
articles; for I have shown how futile would be 
the etfbrts of im^porters and consumers to con- 
test the questions of law and fact which musi 
arise in each case, whether the imported article 
was made in whole or in part " by a proces- 
or machine, or by any substantial moditication 
thereof, for which there was at the time a sub- 
sisting patent owned by a citizen of the United 
States " And the terms of this bill, as I have 
shown, preclude any other inquiry, and would 
render conviction certain. 

Can such a law pass an American Congress ? 

Most respectfully, your fellow- citizen and obe- 
dient servant, 

GEO. W. BEARDSLEE. 

Hon. R. M. T. Hunter, U. S. Senate. 

National Hotel, 
Washington, June 21, 1852. 
Sir: Since writing you from Albany on the 
i7th inst.,I have received a communication froiri 
a citizen of New Haven, Connecticut, who has 
just completed and put in operation a large mill 
in Brantford, Canada West, at a cost of over 



$30,000, in which he has a great variety of 
machines built and sold to him by American 'pa- 
tentees, to be operated at his mill and the products 
to be imported into the New England States. 
It will readily be perceived that the products of 
these machines thus imported may, if the bill in 
question is passed, be seized and placed in the 
custody of the marshal, at the instance of the 
patentee, or any person or persons holding as- 
signments of any or all of the several patent 
rights, in any territory of those States. 

I would also call your attention to the act of 
Congress granting the last extension of Blanch- 
ard's patent, passed February 15, 1847, and 
which may be found in the 9th volume of the 
United States Statutes at Large, page G83. The 
provisions in the act are not such as would ef- 
fectually secure the vested rights of assignees 
under the first extension. 

The act extending the Woodworth patent does 
not contain any provisions securing such rights, 
but was an absolute grant without reservatioi.. 
to the administrator, W. W. Woodworth. (See 
vol. 6 U. S. Statutes at Large, page 936.) 

There is another and more serious objection to 
the passage of this bill, which, it appears to me, 
must be fatal to it. You will find, on reference 
thereto, a clause in nearly all the treaties of 
commerce between the United States and other 
countries, substantially like the following, which 
is taken from the treaty with Mexico of April 5, 
1831, (vol. 8 U. S. Statutes at Large, page 412, 
part of art. 4 ;) confirmed and continued by treaty 
of February 2, 1848— (vol. 9 ih., page 935, art. 
17:) 

*' Higher duties shall not be imposed in the 
respective States on the exportation of any article 
to the States of the other contracting party than 
those which are nov/, or may hereatter be, paid 
on the exportation of the like articles to any other 
foreign country; nor shall any ^prohibition be es- 
tablished on the exportation or importation of any 
articles, the produce, £rrowth, or manufacture of 
the United States of America, or of the United 
Mexican States, respectively, in either of them, 
'vhich shall not in like manner be established with 
respect to other countries." 

Would not this bill, by virtually prohibiting 
the importation of articles the manufacture of 
countries adjoining and near to the United States, 
conflict with these existing treaties ? 

The words, " or have in possession," in the 
bill, would apply to all articles in possession, 
without regard to the time when the same were 
imported. Thus the shoe-lasts and hoot -trees 
in the shops of our cobblers and shoemakers 
would be liable to seizure if imported before the 
passage of the bill, as they would be held to be 
infringements of Blanchard's patent — and so 
of other articles thus imported. 

Our patent laws allow patents to be issued for 
inventions of machines, not for the products of 
those machines. This bill makes the products 
patputahle, as well as the machines by which 
rhey are produced. Thus the shoe last becomes 
the subject-matter of Blanchard's patent, as well 
as the machine by which it is made. 

The bill is wrong in principle. It punishes 
the consumer for the infringement of the manu- 
facturer. 

It exposes consumers to the apprehension of 



LIBRARY OF CONGRESS 



litigation. After public notice, everybody is 
charged with knowledge. 

A purchaser is threatened. He is liable to be 
sued in the United States court, and must de- 
fend another man's patent, at an expense of 
$1,000, or he must submit to the exactions of 
the claimant. 

It will be made an instrument of oppression 
and extortion with all those who will submit to 
he fleeced rather than be sued. The weapon is 
put in the hands not only of honest men, but 
knaves, who will use it for knavish pur- 
poses. 

The 2d section authorizes the seizure of the 
articles from any party in possession, though in- 
Tiocent himself i provided the)^ were imported or 
jiurchased by somebody else in violation of the 
1st section. 

And this not upon a judgment after trial, but 
summarily, before trial. True, it is to be upon a 
hill on oath ; but it may be upon the mere infor- 
mation and belief of the party swearing. 

All that is required is to make the fact appear 
that they were imported (not by the defendant, 
l)ut by anybody) in violation of the first section, 
*' to the satisfaction of the judge as probably 
true," and the property is taken into the c%istody 
of the marshal, where it must remain four or five 
years, until the final decision on writ of error 
or appeal. 

Thus, though ostensibly aimed at the purchaser 
with knowledge, it really robs an innocent party 
in possession oi the property— and does this upon 
merely showing that it was imported probably 
with knowledge by some one else. 

Execution precedes judgment— and this against 
an innocent party, and merely because it is prob- 
able that somebody else has done wrong. 

There is no need of extending further protec- 
tioa to patentees. All valuable patmts pay. 



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Those that ai | {|| || ||{|| || ||| |{| |{ |{ i 

"Most respe„.u,?, 030 016„ 996^J 

And obedient servant, 

GEO. W. BEARDSLEE. 
Hon. R. M. T. Huntee, U. S. Senate. 



A BILL giving further remedies to patentees. 

Be it enacted by the Senate and House of ReprC' 
sentatives of the United States of America in Con- 
f^ress assembled. That if any person or corporation 
shall hereafter iraport, or have in possession, for 
the purposes of traffic, use, or sale, any articles 
ijitiported into the United States trona any foreign 
territory adjoining or near thereto, knowing them 
to have been manulactured in whole or in part 
in any such territory by any process or machine, 
or by any substantial modification of any pro- 
cess or machine, for which there may be at the 
time a subsisting patent owned by any citizen of 
the United States, such person or corporatioa 
shall, upon due proof thereof, before any court of 
competent jurisdiction, be deemed to have in- 
fringed said patent, and be liable tot all damages,^ 
in the same manner, and to the same extent, as 
in other cases of infringement. 

Sec. 2. And be it further enacted. That when- 
ever a patentee, or any person holding under him, 
shall file a bill in equity, verified by oath or af- 
fii-mation in the circuit or district court of the 
United States, complaining that any person or 
corporation has imported, or has in possession 
ior sale, trafiic, or use, any articles imported or 
purchased in violation of the preceding section, 
and shall make it appear, to the satisfaction of 
the judge, that the facts alleged are probably true, 
the said judge shall issue an order to the marshal, 
directing him to take said articles into bis custody, 
and hold 'the same subject to the final order of 
court ; and may further, by injunction, restrain 
the sale of, and traffic in, said articles: Provided, 
hoivever, That from all judgments and decrees of 
said courts, a writ of error or appeal shall lie in 
the same manner as is now provided by law in 
relation to other judgments or decrees. 



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LIBRARY OF CONGRESS 



030 016 996 A 



